Why is the CBI Unconstitutional?

By Satya Vrat Yadav, College of Legal Studies, UPES

In a very bold decision of Guwahati High Court, it has been held that the very process of setting up the Central Bureau of Investigation (CBI) was invalid and unconstitutional. Although almost all have criticized this decision of Guwahati High Court yet it is neither absurd nor an uncalled one.

Parliamentary oversight of any law enforcement agency is the core requirement under Indian Constitution. However, our intelligence agencies and many law enforcement agencies, including CBI, are not governed by any sort of parliamentary oversight. Even CBI is well aware of this ground reality. The Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same could not see the light of the day. CBI’s case is a political fiasco that has arisen due to the PMO indifference.

Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to materialize and till now our intelligence agencies are not governed by any law. In fact, intelligence agencies are vehemently opposing the proposed Right to Privacy Bill 2013 so that they remain ungoverned and unaccountable in every possible sense.

India has already launched illegal and unconstitutional projects like Aadhar, central monitoring system, national intelligence grid (Nat grid), etc. without any legal framework and parliamentary oversight. Now when we have a chance to bring some sanity among the chaos created by the intelligence infrastructure of India, the intelligence agencies have pulled their sleeves to stall the proposed privacy bill.

CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. It  has already been indicated that the impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, this Resolution, can, at best, be regarded as departmental instructions, which cannot be termed as ‘law’ within the meaning of Article 13(3) (a) nor can the executive instructions, can be regarded to fall within the expression, “procedure established by law”, as envisaged by Article 21 of the Constitution.

Thus, the actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused, etc., offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional.

Whether the DSPE Act, 1946, is ultra vires the Constitution?

If a Pre-constitutional law was made on a subject, which is, now, covered by State List, whether the law will be valid after the Constitution has come into force bearing in mind Article 372?

Appellant argued three reasons in Guwahati high court to prove that DSPE Act 1946, ultra vires the Constitution of India, the first reason being that an existing law, or a law, which had been in force, immediately preceding the commencement of the Constitution of India, would be inoperative and invalid if it, otherwise, violates any of the fundamental rights, particularly, life and liberty of a person. The second reason, is that the Parliament does not have legislative competence to enact law on ‘police’ inasmuch as ‘police’ is a State subject, covered by Entry No.2 of List II (State list), and it is, therefore, the State Legislature alone, which is competent to enact law on ‘police’. Third ground, assailing the validity of the DSPE Act, 1946, is that it extends, in terms of Section 1 of the DSPE Act, 1946, to the whole of India; whereas, no law, made on ‘police’, can extend to the whole of India.

The High Court observed that CBI was constituted through a resolution issued by the Union ministry of home affairs on April 1, 1963. The creation of the CBI through the resolution, which was signed by then secretary to the Union government V. Viswanathan, was held to be as ultra vires by the Court. The Court also set aside the impugned resolution. As a result of that, court declared that, the CBI ceased to be a constitutionally valid police force empowered to investigate crimes and all CBI cases have become void ab initio.

The High Court was of the view that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order. For that purpose, an act shall have to be passed by the Legislature. This is a valid stand taken by the Court and this situation could have been avoided if proper law for CBI was drafted in time. There is nothing wrong per se with CBI but its constitution is highly controversial and debatable.